Mediaset has lost the first round of the legal battle waged by the television network against the fine issued by the National Commission of Markets and Competition (CNMC) for anti-competitive practices in the marketing of television advertising.
As stated in the car to which he has had access investedthe National audience has rejected the precautionary measures requested by the television group in November of last year and which requested paralyze the execution of a series of conditions imposed by Competition to limit the advertising control that both Mediaset What Atresmedia they made from the market.
car refers to Mediasetbecause the resource of this chain was processed separately from that of Atresmedia -with almost identical characteristics-. It is expected that in the coming weeks the ruling of the document presented by the editor of Antenna 3 and that the resolution goes in the same line.
In the case of Mediaset, the Court considers that it is not appropriate to suspend the cessation of the conduct as requested by the television network. In this way, you must comply with the requirements of the CNMC and implement the required changes.
In November, the CNMC asked for the cessation of packaged commercial practices in the commercialization of its channels, advertising in simulcastestablishment of extra premiums and the end of contracting advertising conditioned to volume.
The fine stops
According to the CNMC resolution, the two channels were obliged to modify this commercial strategy within three months, to submit to a surveillance system that would supervise the advertising run of the two channels and to assume a total penalty that rose to 77.1 million euros (38 million for each of the groups).
However, the clock was stopped by the presentation of the appeals for Atresmedia and Mediaset, requesting the suspension of the execution of the conditions and the fine and appealing the ruling as a whole. The two groups wanted to avoid that the execution of this sentence could cause damage “impossible to repair” if the courts finally annulled it in a process that could take more than four years.
In this sense, in the same order to which this newspaper has had access -and which refers only to the request for precautionary measures- it is indicated that the execution of the fine is suspended, but not because it is considered that Mediaset is right, but that the current situation of the pandemic is considered to be negatively affecting its advertising revenue.
The Chamber considers that making him pay that amount in these moments of market uncertainty can cause some damage, while the general interest is not affected. Precisely, so that this interest is not affected, the suspension of the fine has been conditioned on the chain providing a guarantee of 38 million, in the event that Mediaset loses the final appeal.
In other words, despite the fact that the chain will not yet have to pay the fine, you have to have it provisioned and perfectly guaranteed. Until the presentation of its last semi-annual accounts, Mediaset had not provisioned the fine, since the chain trusted that its precautionary measures would have a greater effect.
In this way, and pending the ruling on the appeal for precautionary measures by Atresmedia, The CNMC will be able to start executing its requests and the conditions it imposed on the two networks in November. In short, begin to carry out an effective supervision of the new advertising model that the chains should carry out based on the conditions of the file.
This, without prejudice to the fact that the appeal of the two chains before the National High Court against the Competition file continues its course. The process could take more than five years, since there is also the possibility of appealing the fine before the supreme court.
All in all, the rejection of Mediaset’s precautionary measures is justified by the National audiencebecause if approved, it would allow Mediaset to continue carrying out practices that the CNMC considers anti-competitive.
In a preliminary assessment (and without prejudice to what is decided in the judgment), the practices appealed concentrate in Mediaset more than 40% of the advertising offer of the market, says the National audience. At the same time, it indicates that the public interest prevails over the possible effective damages for Mediaset which, if the litigation is won, are perfectly reversible as they are compensable.
In this way, prevails the public interest that seeks to guarantee effective competition in this market. Regarding the appearance of good law that Mediaset invoked, the Court says that this would require entering to assess the merits of the matter, “which is not the object of the piece of precautionary measures,” he says.